Kashmir: Civil society objections to proposed Police Bill

Following a preliminary reading of the Draft Jammu and Kashmir Police Bill, 2013, made public on 15 February 2013, the undersigned condemn the attempt of the Government to formally put in place powers and structures that the Jammu and Kashmir Police have for long enjoyed and employed to carry out systematic human rights violations in Jammu and Kashmir. Further, specific sections of the Draft Bill that are seriously objectionable are listed. As an immediate step, the Government must extend the time allotted for feedback from people.

The undersigned civil society members condemn the Government for seeking to formalize the practices that have resulted in structural police violence in Jammu and Kashmir. A preliminary reading of the Draft Jammu and Kashmir Police Bill, 2013, suggests that the Government seeks to formalize previous draconian practices and activities of the Jammu and Kashmir Police. The Draft Police Bill essentially reads as a blueprint on how to exercise control on the entire populace – wide powers, including collection of personal information on demand, increased surveillance of people and creation of zones and extensions of the police to collect information and take action.

The Draft Police Bill must be seen in the larger context of the actions of the Indian State in Jammu and Kashmir. Widespread human rights violations, an absolute disregard for the law, and a political will to control territory by any and all means, have been a feature of the Indian State in Jammu and Kashmir. A formal law, such as the Draft Police Bill, is merely an attempt to provide the police with the powers they already held in de facto. Further, as always, the Indian State seeks to reduce the reality of Jammu and Kashmir to a “law and order” problem, with no regard for the rights of the people.

The timing of the Draft Police Bill is unsurprising. The Draft was made public on 15 February 2013, and suggestions were sought within two weeks. Kashmir was at that point under curfew, and Afzal Guru had been hung to death a few days prior. The Government apparently sought to use the situation to formally introduce the abhorrent Draft Police Bill that seeks to turn Jammu and Kashmir into a police state.

Specific concerns with the Draft Police Bill are as follows:

1. Village Defence Committees’s [VDC] and Special Police Officers [SPO] are once again provided for, under Sections 62 and 63 respectively, but this time, the powers are wider and the checks are more limited. For example, earlier the appointment of a SPO was to be confirmed by a Magistrate. The Draft Bill no longer requires this. Also, earlier the SPO was to be limited to certain situations – now a SPO can be appointed for any purpose. Further, under the Model Police Act, 2006, Section 22(2)(a), prescribed training, followed by issuance of a certificate, is mandatory for such persons appointed as SPO’s. No such requirement exists in the case of the Draft Police Bill. Similarly, Section 77 of the Model Police Act, 2006, provides for a “Village Defence Parties”, but Section 78 precludes certain persons for being employed – for example those convicted by a court of law. Further, Section 82 mandates “necessary training” for such persons appointed. No such checks/measures appear in the Draft Police Bill for VDC’s. More importantly, and drawing from the Supreme Court judgment [Nandini Sundar & Ors. v. State of Chattisgarh], the undersigned more fundamentally oppose the creation of any such SPO’s or VDC’s based on the manner in which the police in Jammu and Kashmir have used such tools to oppress the people.

2. Similarly, the concept of “community policing” is introduced under Section 32, along with rewards for the same [Section 34]. Essentially, therefore, the Draft Bill seeks to cultivate a culture of un-accountable collaboration with the system and corruption within communities by empowering untrained and unaccountable persons. Section 32, and the definition of “Civil Society Committee” under Section 2(1)(v) must be deleted.

3. Section 33 of the Draft Police Bill that rewards police and informers must be done away with. The human rights story of Jammu and Kashmir clearly establishes the direct connection between awards, rewards and out-of-turn promotions and human rights violations by the State.

4. Section 92 of the Draft Police Bill states that a police officer shall be considered to be always on duty. This appears to be an attempt to legitimize all actions of the police as being part of the official course of duty, thereby providing, in effect, absolute immunity to the police as sanction would be required by the Government before a court may take cognizance of an offence.

5. Section 96(2) of the Draft Police Bill bars the police from taking part in any demonstration or meeting for a political purpose. This is once again an attempt to seek to “de-politicize” the police force when the reality is that the Indian State, through various means including inducements, has consistently sought to make the police force “pro-State” and anti-people. There is no doubt that this provision would be selectively used to target any police personnel who displays any interest in political matters that the State wishes to suppress.

6. The absolute powers of the police are formally extended in the Draft Bill:

– Section 10(1) seeks to ensure zero transparency of the police by stating that all information with the police shall be “confidential” except when used for any official purpose. The experience of civil society when dealing with the police under the Right to Information Act, 2009, has been a constant attempt of the police to withhold information, even in cases of human rights violations. Section 10(1) is an endorsement of this reprehensible behavior of the police.

– Section 13, provides the police the right to ask for personal information from anyone – the only qualification being that “sufficient reasons” need to exist.

– Section 14, and its broad phrasing, seeks to impose on the general public a duty to assist the police. Further, the Draft Bill allows for action to be taken against people who don’t co-operate.

– Section 24 provides absolute power to the police on personal information of the public from service providers, which is widely defined and includes cellular phone companies. Such broad powers ensure that the police can harass people by creating identity profiles.

– Dissent is also now regulated under Section 81(4) which allows the police to regulate any activity or programme which is “otherwise lawful but has the potential of disturbing the law and order” [emphasis added].

The Draft Police Bill seeks to formally consider Jammu and Kashmir as being in a state of emergency, thereby requiring “martial law”. This is an abhorrent attempt by the Government to formally legitimize Jammu and Kashmir as a police state.

7. All of the above culminates into the creation of Special Security Zones [Section 82]. Within these zones, the attempt is to allow the police [and its functionaries – from SPO’s to “community” representatives] absolute and unaccountable powers. For example, section 86 allows for a different Standard Operating Procedure within these zones, without specifying the limits to these powers. Section 85 can be used to regulate, for example, the use of cell phones, or inflow of funds.

8. Section 54(3) of the Draft Police Bill on the appointment of the Director General of Police must specifically include the Leader of the Opposition Party in the selection process. Further, the composition of the State Security Commission, under Section 68, must include the Leader of the Opposition Party. The selection of the Chairperson of the State Police Complaints Authority, under Section 102, must include the Leader of the Opposition Party.

9. Section 70(a) of the Draft Police Bill must be amended to refer to “permanent resident of Jammu and Kashmir”.

Based on the above, the undersigned condemn the timing and content of the Draft Police Bill, 2013 and urge the people of Jammu and Kashmir, including those within the legislature, to campaign against the passing into an Act of the instant Draft Bill. Further, we demand as an immediate measure that the Government extend the time allotted for feedback from the people.

This Draft Bill is extremely nefarious. Kashmir had always remained the victimized state ever since Hari Singh signed to induct the state into India. It is highly unfortunate and disheartening to see how the selfish politics manipulate the sentiments of people and maintain, yet, to keep peace at bay.
Should a third-party such as the UNO step in, the issue would be resolved, let us say, in no more than a month. The Indian and Pakistan state, both because to retain their own selfish political games, resist such an involvement.

I don’t think that UNO will be solving the problem in a fair manner. Having the knowledge that it is dominated by the States, they may try to extract advantage from the problem to further destabilize the peace issues (remember the recent incident of Hagel?). UNO should be the last option.